AT&T and Media Showdown Over Sealed Spy Docs

A federal judge in San Francisco declined to decide today whether to unseal documents at the heart of a lawsuit against AT&T for its alleged participation in a warrantless government wiretapping program aimed at Americans’ overseas emails and phone calls. Attorneys for Wired News and print organizations argued that documents provided to the Electronic
Frontier Foundation by former AT&T technician Mark Klein are of public interest. AT&T’s counsel rebutted that the documents, which include detailed wiring diagrams of an alleged secret spying room in a San Francisco switching center and an evaluation of the documents by a former FCC employee, contain valuable trade secrets and should remain under seal.

AT&T’s counsel Bruce Erickson told Chief Judge Vaughn Walker that the law protected trade secrets and that the public’s interest in the documents does not override that.

"The documents include things important to AT&T as part and parcel of protecting its network from hackers," Berenson Erickson said.

Though Wired News independently acquired and published portions of the documents under seal in May, Berenson said the "horse was not out of the barn" and that there were sensitive technical details under seal in documents that total about 120 pages.

Wired News attorney Timothy Alger contended that if the allegations that AT&T was working with the government to tap internet connections, then the public should be able to see the documents.

"Given our society’s reliance on the Internet, this has profound consequences if th government can intercept emails and see search engine queries," Alger said.

Karl Olsen, who represented print media outlets including the Associated Press, argued that AT&T’s earlier declaration that the documents contained trade secrets was made moot by the publication of portions of the documents by Wired News. He also contended that there were no real trade secrets at issue. He cited, for example, an un-redacted expert opinion that the splitters described in the documents — which are used to siphon a copy of internet traffic into a specialized room — are available routinely.

Vaughn Walker declined to make any decisions at the end of the two hour hearing, which was largely dominated by complex wrangling over whether a related ACLU lawsuit against AT&T and Verizon, initially filed in California state court, should stay in federal or state court.

While the points of law were arcane, the government and AT&T fought hard to keep all the suits in one court, rightfully fearful that if they lost, they would be fighting on many fronts.

While neither telecoms nor the government admit they are working together as alleged in the more than 50 lawsuits filed against them, their odd legal strategy today revealed how deeply entwined their interests are. AT&T counsel Bradford Berenson, who worked in the White House on antiterrorism matters when the surveillance began, argued that letting state lawsuits go forward would imperil the government. Meanwhile Justice Department lawyer Carl Nichols argued that AT&T could get the cases moved to federal court by arguing that they were acting under the direction of the federal government.

If this case goes to state court, I can guarantee we will have soon have 50 or more cases, and […] it will be impossible to have uniformity," AT&T attorney Berenson said. "These are the kinds of risks and dangers the United States should not have to court."

For its part, the ACLU argued that the state court has jurisdiction since the state recognizes that if AT&T or Verizon were working for the government, they are immune, but if there was no written authorization, only a request, there is no federal issue. Berenson countered that this was just a technicality and that the lawsuit is "asking a state court to enjoin an ongoing federal military intelligence program."

While Judge Walker is continuing on with smaller matters in the AT&T case, it remains largely on hold until the Ninth Circuit decides to uphold or reverse his decision to let the case go forward, despite the government’s assertion that the whole case be dismissed on national security grounds. In July, Walker ruled that the case could go forward because the government has publicly admitted the existence of the warrantless wiretapping.
An August decision in Detroit finding that the program was illegal is also on appeal.

The cases could also be complicated or rendered moot by planned Congressional hearings in the new year. Walker will likely issue an order on today’s matter in the coming weeks.

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